Judgment : Dt.15.6.2017

Mrs. Balaka Chatterjee, member

            This petition of complaint filed under Section 12 of C. P. Act 1986 filed by Sri Mihir Dasgupta alleging deficiency in service on the part of the OPs – (1) M/s City Construction (a) Sri Ashok Pal, (b) Sri Debasish Biswas, (c) Smt. Rita Bhawal (Developers), 2(a) Smt. Kalpana Pal, (b) Sri Bubai Pal, (c) Mrs. Namita Pal, (d) Mrs. Mom Dasgupta, (e) Mrs. Mou Dey Sarkar, (f) Mrs. Julie Majumder, (g) Sri Shyamal Pal, (h) Sri Sajal Pal, (i) Smt.Shepu Pal, (j) Sri Goutam Pal, (k) Mrs. Anju Das and (l) Mrs. Manju Halder – Land Owners.

            Case of he Complainant in brief is that he entered into an agreement for sale on 13.10.2014 for sale and transfer in respect of all that one complete residential flat measuring more or less 1120 sq.ft. super built up area on the 4^th floor (South west side) of a multistoried building to be constructed at KMC premises No.54, Raja S.C. Mullick Road. Postal Address as 3, S.P.C. Block, Chittaranjan Colony, Kolkata-700 032, Dist.- 24 Pgs.(South ) along with right in all the common area and common spaces, stair case, landing pathways, boundary wall, etc. at a total consideration of Rs.19,00,000/- only with the OP developer i.e. the 1 series OPs in the instant case who were empowered to enter such agreement vide development agreement dt.15.09.2006 executed by and between the land-owners and developers and two General Power of attorney dt.24.9.2006 and 12.7.2006 were executed in favour of the developers. It is stated by the Complainant that as per terms of the agreement dt.13.10.2006 he had paid Rs.8,00,000/- at the time of  execution of the said agreement and thereafter paid balance amount of Rs.11,00,000/- by five installments against which the OP developers issued proper receipts. It is specifically stated by the Complainants after waiting a considerable period of time he approached the OP developers for delivery of possession of the said flat but the OP developer turned a deaf ear to the request made by the Complainant and even did not allow him to enter into the flat so that he might inspect the same. Since then the Complainant has been knocking the door of the OP developers for delivery of possession as well as execution and registration of Deed of conveyance but all went in vein. According to the Complainant, this inaction on the part of the OP amounts to deficiency in service. Accordingly, the Complainant has prayed for a direction upon the OPs to hand over the possession of the flat mentioned herein above, to execute and register the Deed of Conveyance in respect of the said flat, to pay Rs.90,000/- towards compensation for adopting unfair trade practice and to pay Rs.10,000/- towards cost of litigation.

            Notices were served upon the OP. But, they did not turn up so the case was fixed for ex-parte hearing vide Order No.7 dt.18.5.2017

Decision with reasons

            The Complainant filed the petition of complaint swearing affidavit and notarised the same annexing the documents including development agreement dt.15.9.2006 executed by and between the land-owner and the Developer, General power of attorney executed on 27.9.2006 and another executed on 12.07.2007 delegating power by the land-owners to the developers, agreement for sale dt.12.02.2010 executed by and between the purchaser and the developer, money receipts dt.12.02.2010 for Rs.8,00,000/-, 30.01.211 for Rs.3,00,000/-, dt.24.4.2011, for Rs.2,00,000/-, 20.7.2011 for Rs.2,00,000/- dt.22.10.2011 for Rs.2,00,000/-, 26.12.2011 for Rs.1,00,000/-.

            It is evident from the unchallenged evidence by the Complainant that he had entered into an agreement for sale in respect of a flat, at KMC premises No.54, Raja S.C. Mullick Road. Postal Address as 3, S.P.C. Block, Chittaranjan Colony, Kolkata-700 032, Dist.- 24 Pgs.(South ) at a consideration of Rs.19,00,000/- which was payable as per terms of the mode of payment agreed by the parties by virtue of agreement for sale dt.13.10.2010.

            It appears from the copies of the money receipts that he had paid the entire amount of consideration which was duly received by the OP developer and the last payment was made on 26.12.2011. It appears that more than 6 years had been lapsed from the last payment of the consideration amount and after waiting for such a long spell of time, the Complainant did not receive possession of the flat in question and nor did get the said flat register in his favour due to inaction on the part of the OP developer which is a glaring example of deficiency in service for which the OP developer are liable to compensate the Complainant. As per our assessment, if the OP developers pay Rs.50,000/- it will be just and proper to compensate the Complainant. Further, non delivery of the possession as well as non-registration of Deed of Conveyance in respect of the flat in question compelled the Complainant to file the instant case. Therefore, the OP developers are liable to bear the cost of litigation.

            In such view o the matter, we are inclined to allow the petition of complaint.

            In the result, the petition of complaint succeeds.

            Hence,

ordered

            That CC/129/2017 is allowed in part ex-parte.

            The OPs are directed to execute and register the Deed of Conveyance in favour of the Complainant within one month from the date of communication of this order. The OP developers are directed to deliver possession of the said flat within the aforesaid period.

            The OP developers are further directed to pay Rs.50,000/- towards compensation and Rs.10,000/- towards litigation cost within aforesaid period, failing which the entire amount shall carry interest @ 12% p.a. till realization.

            In the event of non-compliance of the order or any part thereof the Complainants may execute the same under the provision of law.